that needs rigorous debate. As a country we constantly need to reflect and assess on what we have achieved in an endeavor to improve on our past performances and in so doing contribute towards the delivery of rights to all who live in this land.

The mandate and functioning of the SAHRC

The SAHRC is one of the independent institutions created in terms of Chapter 9 of the Constitution to support democracy in South Africa.

The SAHRC is mandated by section 184 of the Constitution to:

(a) Promote respect for human rights and a culture of human rights;

(b) Promote the protection, development and attainment of human rights; and

(c) Monitor and assess the observance of human rights in the Republic.

The SAHRC has chosen as its focus areas the elimination of discrimination and the alleviation of poverty. In focussing our work on these areas, the commission is particularly alert to vulnerable groups such as children, persons living with and affected with HIV/AIDS, persons with disabilities and non-

nationals.

Under the guidance of Commissioners and the Chief Executive Officer the work of the SAHRC is delivered through the departments within the Secretariat. These are: the Legal Services Department: the Education and

Training Department; and, the Research and Documentation Department. In addition the SAHRC has offices in seven provinces and a presence in the remaining two; namely, North West and Mpumalanga through which its

services are delivered.

Land Rights work within the SAHRC

This submission will draw largely on the work of the Commission in its areas of land rights. The two major areas of work include the Economic and Social Rights reports that the Commission produces each year and the Inquiry into Human Rights in Farming Communities.

In June 2004, the SAHRC released its 5" Economic and Social Rights Report. The Report covers the period 1 April 2002 to 31 March 2003. This work derives its mandate from section 184(3) of the Constitution which states that:

"Each year, the Commission must require relevant organs of State to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment. "

In August 2003, the SAHRC released its Final Report on the Inquiry into Human Rights Violations in Farming Communities. This was a national inquiry that looked at issues in 4 broad areas, namely land rights, labour rights, safety and security rights and economic and social rights. The land rights sections of the Inquiry focuses predominantly on tenure security rights.

Land Reform

Land reform in South Africa is divided into three broad areas, namely land redistribution, land restitution and tenure reform. This submission will discuss the challenges that the SAHRC has identified in these areas that impact on the pace of land reform.

The general conclusion of the 5^th Economic and Social Rights Report was that there was a year on year improvement in land delivery performance by the State, especially through the land restitution and land redistribution programmes. Improvement in rural land tenure reform was found to be less noticeable.

Throughout the Report, the Commission reflects on the demand, voiced by landless people and others, that the pace of land redress is too slow and inattentive to vulnerable groups. The Report recommends accelerating land

reform to meet its new targets by relieving budgetary constraints; addressing personnel shortages within the Department of Land Affairs (as well as the related issues of lack of quality training and understandable communications); addressing issues of land acquisition in order to provide land for redistribution and the need for improvements in the monitoring and evaluation of land reform.

Land Redistribution

Since 1994, only 2% of land has been redistributed. This falls far short of the 30% that was targeted for by government. The two main reasons identified by the SAHRC for this failure in this area is the lack of land available for redistribution and the lack of adequate and integrated support services to beneficiaries of land redistribution programmes.

Challenges to the pace of land redistribution

Transferring land to the disadvantaged

There is a scarcity of viable commercial agricultural land in South Africa. There is only a small fraction of commercial agricultural land in the possession of the State.

Present landowners of commercial agricultural land do not willingly sell their land. In some instances there is a tendency by these landowners to overprice their land.

Land in South Africa is expensive and buyers including the State cannot afford to purchase land.

The DLA has not used its powers of expropriation in suitable instances to expropriate commercial agricultural land where it is needed for land redistribution programmes.

In those instances were land is sold by commercial farmers there are bureaucratic structures that prolong the sale of land resulting in not being an attractive option to landowners.

Overall economic development of the rural communities

There is often inadequate post transfer support

There is no centralised integrated institution that coordinates the services that are needed for beneficiaries of land programmes.

Land reform cannot happen in isolation to other socio economic rights.

There are budget inadequacies resulting in some provinces having already committed their budgets for the coming years and being unable to process further LRAD applications.

Thus whilst the LRAD Programme, the major delivery vehicle of the DLA's land redistribution programme, has reached its targets, and in some cases have gone beyond these targets, there are still many challenges that need to be addressed in order to ensure that land redistribution is successful in the long term. The major weakness of land redistribution lies in the ineffectiveness of post settlement support of LRAD projects.

Rural communities are growing impatient with the slow pace of land reform. There is the risk that this impatience could give rise to drastic measures outside of the legal and constitutional framework being taken by communities

- such as land invasions. The SAHRC cannot support such actions that occur outside of the law. However, the genuine frustrations of people on the ground need to be managed and addressed. To this end, it is critical that effective communication and education programmes about land reform is embarked upon by the DLA in order that communities can understand the complex nature and challenges that face government in delivering upon and realising land reform.

During the public hearings of the Farming Inquiry a call was made for the amendment to the property clause in the constitution as this was viewed as an obstacle to the pace of land reform. In 2004, the SAHRC hosted a seminar on this topic. Arising out of the seminar, the SAHRC was not convinced that the property clause as it stands acts as an obstacle to land reform as the precise nature of how it impacts on land reform could not be adequately identified. It appeared rather that land reform was impeded by poor implementation of legislation and policies and that certain policy choices that have been made, such as the willing-buyer / wilting seller principle and the DLA's policy towards using its expropriation powers, should be revisited.

Land Restitution

Undoubtedly, great progress has been made in the area of land restitution. Having begun very slowly, the pace of land restitution delivered through the Commission for the Restitution of Land Rights (CRLR) has increased

enormously. This can be attributed to the fact that in settling claims, land transfer is not always the chosen method of compensation. Rather, financial compensation is awarded to claimants.

Should the nature of the settlements granted to claimants exceed the budget allocation then the 31 December 2005 deadline for the processing of all land claims may not be reached. It should also be noted that there are still a number of rural claims that must be settled. In some instances, these claims involve large tracts of land over which complicated and pro-longed negotiations with the current landowner are necessary. Based on these factors it is not certain that the CRLR will compete its work by the end of 2005.

Challenges to the pace of land restitution

The number of outstanding unsettled claims

There are still many land claims that must be finalised and it is not certain whether the 31 December 2005 deadline will be reached. 48 825 claims (as at 31 March 2004) have been settled since 1995. Whilst the CRLR is reportedly working in overdrive, the other government departments with which they must interact do not operate with the same sense of urgency.

Political pressures

President Mbeki has set the cut off date at 31 December 2005.

There is pressure from NGO's that the process be completed.

There is a lack of support for the process from some landowners.

Minimal resources

The CRLR budget may be insufficient for it to complete its work by the cut off date.

The CRLR is currently experiencing a high staff turnover rate in anticipation of its closure in December 2005.

There is currently insufficient staff for the CRLR to carry out its work.

Contracted service providers are also not adequately skilled and proper control and monitoring of heir work cannot be carried out due to a lack of staff within the CRLR.

Expensive prices of land

Other

Illiterate claimants, resulting in claims taking longer to process

Claimants not possessing basic documents such as ID documents, resulting in delays in the processing of claims.

Land reform is not an end in itself; it must go beyond mere compensation or settlement and focus on economic empowerment of rural communities. It is thus important that claims should not be processed merely in order that we can state that the process of land restitution is completed: or, that the process of giving monetary compensation to claimants acts as a poverty relief measure rather than as constitutionally demanded land restitution process to address the imbalances and injustices of the past. Rather, restoring land to rural claimants should be favoured within a context in which the necessary support is provided in order that the land is used in a sustainable and productive manner that contributes towards the economic empowerment of poor rural communities.

Land Tenure Reform

Arbitrary evictions continue to occur in South Africa despite the promulgation of legislation such as the Extension of Security of Tenure Act 92/1997 (ESTA) and the Land Reform (Labour Tenants) Act 3/1996 (LTA). Despite the

protections in ESTA there have been very few criminal prosecutions for the act of eviction against a landowner. Many farm dwellers still do not enjoy security of tenure. ESTA is a contested piece of legislation amongst role-

player with landowners claiming that parts of the ESTA are unconstitutional and expressing open dislike for the legislation; and, farm dwellers arguing that the legislation does not provide them with enough protection.

Land rights in the communal areas, which constitute 13% of the country's land surface and which is home too a third of the population, has still not been adequately dealt with. The Communal Land Rights Act only came into law in February 2004.

Challenges to the pace of tenure reform

The implementation of legislation has been weak resulting in enforcement mechanisms failing to provide the necessary protection.

The lack of institutional and financial support to implement the legislation results in systems that are shielded from external observation.

There is a lack of knowledge of the legislation amongst all role-players.

There is a lack of compliance with the legislation.

There has been insufficient training about the legislation for relevant role-players.

Bureaucratic processes and a lack of strong institutions constrain

projects. E.g. working relationships between the DLA and municipalities has not always been satisfactory.

There is no eviction monitoring system.

Many cases of eviction go unreported due to a lack of knowledge about the law or a lack of access to justice to enforce rights contained in the law.

LRAD has been given preference over tenure reform projects.

There is a scarcity of land available to provide secure tenure.

The process of providing secure tenure and determining land rights in the communal areas has not been realised due to a lack of adequate legislation. Many role-players contest the current Communal Land Rights Act.

Security of tenure is another area of land reform that demands the cooperative interaction between different government agencies. There are many state role-players such as the DLA, police, court prosecutors,

magistrates, and social workers, amongst others that need to work together when confronted with an eviction that has occurred. The ESTA Forums that have been established in some of the provinces are supported. It is

encouraged that those provinces that do not have ESTA forums establish them in order that inter departmental cooperation can take place in eviction matters.

Recommendations

The SAHRC has made a number of recommendations in its Economic and Social Rights Reports as well as it Final Report on the Inquiry into Human Rights Violations in Farming Communities on measures that can be taken that would speed up the pace of land reform in South Africa. Listed below are a number of these measures:

a. Staff

The shortages of personnel within the DLA must be addressed urgently.

Vacant posts must be filled.

Adequate training for staff must be provided in order that they may adequately carry out their tasks.

The DLA must make greater use of field workers who can respond to situations quickly and effectively.

Field workers must actively seek out those instances of human rights abuses that occur in accessible areas and where abuses are generally not reported.

b. Budget

The land reform budget must be increased if the pace of land reform is to increase.

The DLA is no longer under spending its budget as was occurring in the past. The budget now appears to be inadequate given the enormity of the task at hand.

c. Policies

Revisiting the willing buyer / willing seller policy

The willing-buyer / willing-seller concept does not always benefit landless people. This market-based concept of redistribution favours emergent farmers and not the landless poor who do not have a financial base on

which to enter land programmes. Other methods of land redistribution must be explored.

A policy needs to be determined which sets out when the use of expropriation powers would be suitable.

T
he purchase of land by foreigners needs to be investigated in order to determine whether this has contributed to the boom in property prices. The Inquiry that has been established by the Minister, in this regard, is supported.

d. Greater inter departmental cooperation and multi stakeholder forums

Effective support mechanisms must be put in place to help resettled families and communities with the rehabilitation of their land so as to promote development and alleviate poverty. Interdepartmental

cooperation and multi stakeholder forums should be formalised with plans, strategies and Memorandum of Understandings.

e. Farming Community Forum

A Farming Community Forum, as recommended in the SAHRC's Farming Inquiry Report, needs to be established. This forum for dialogue should be created between the three major social partners from farming

communities: namely, farm dwellers, farm owners and government. This forum will create a platform where parties can confront each other on an equal basis to resolve issues that impeded the enjoyment of rights in rural

communities.

f. Developing effective monitoring and evaluation systems

Incidents of rights violations must be monitored and recorded.

g. Strengthening provincial DLA offices

Provincial offices must be empowered to draw plans and budgets for the implementation of all land reform programmes.

h. Seeking creative ways in which to make land available

The DLA must consider commencing the use of the Subdivision of Agricultural Land Act Repeal Act 64 of 1998 to make more good quality land available to land reform beneficiaries. The Proactive Land Acquisition Strategy must be implemented in order that it complements the sub-programmes and support projects pertaining

to settlements and housing.

i. Developing effective monitoring structures

Monitoring structures are necessary for ESTA to be effectively implemented and for illegal evictions to be stopped.

j. Tenure Reform

The consolidation process of ESTA and LTA needs to be speeded up and implemented effectively.

The Alternative Dispute Resolution project of the DLA needs to be finalised and implemented.

k. Education and Information Dissemination

The DLA needs to increase its education and information dissemination activities in order that communities are adequately informed on the progress of land reform and also that they are educated about the

complexities of land reform.

l. Providing a voice for the landless

The DLA needs to create more local forums that will provide a forum for the voices of the landless to be heard. The forum must also provide a forum where landless people can participate in the decision-making

processes around land reform that affect them.

Conclusion

In considering the pace of land reform in South Africa, we must be guided by the constitution and the rights enshrined therein. The Constitution sets out specific obligations for government to ensure that redress is provided for past racial discrimination .In the Grootboom judgement(Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC)), the Constitutional Court emphasised the three elements that must be considered in determining whether the State is fulfilling its constitutional obligations. These are: progressive realisation, the reasonableness of the measures and the availability of resources. Whilst on the whole it may be said that the DLA has generally achieved progressive realisation of this right, there are aspects of the land reform programme that may not stand up to constitutional scrutiny. For example, the reasonableness of the measures implemented to provide tenure security could be challenged

based on the lack of effective implementation of this legislation.

Albeit that the pace of land reform has been stow in South Africa, it becomes increasingly clear that land reform cannot be viewed in isolation from other social and economic rights. Land reform needs to be approached within the context of development and the alleviation of poverty. There needs to be greater coordinated efforts amongst the key role-players in realising all of the socio economic rights. It is of utmost importance that sufficient education and information dissemination takes place in order that landless people are aware of the complex challenges involved in land reform. Within this context we need to reach agreement through consensus with key role-players what the pace of land reform should be. Flowing from this consensus we need indicators in order for us to determine whether the agreed upon pace is being achieved.